Medical Malpractice Lawsuit FAQs

What is medical malpractice?

Medical malpractice is negligence committed by a professional health care provider - a doctor, nurse, dentist, technician, hospital, or hospital worker - whose performance of duties deviates from a standard of practice of those with similar training and experience, resulting in harm to a patient or patients. Most medical malpractice cases are based on the concept of negligence-that is, the patient was harmed because the health care provider failed to meet the required standards of skill and care, in accordance with generally accepted standards. Instances of malpractice might include cutting off the oxygen supply during surgery, misdiagnosing an injury because routine tests and procedures were not followed, or prescribing an illegal drug or one not approved for the patient's condition.

Can someone who is simply not satisfied with the results of surgery file a medical malpractice lawsuit?

No. In general, there are no guarantees of medical results, and unexpected or unsuccessful results do not necessarily mean that negligence occurred. To succeed in a medical malpractice case, a plaintiff has to prove that a medical injury or related damages resulted from the doctor's deviation from the standard of care pertaining to the procedure, not that the results from a standardized medical treatment were unsatisfactory.

Can I file a medical malpractice lawsuit against a doctor who prescribed a drug without informing me it's experimental?

All physicians have a duty to inform their patients that any prescribed drugs are a part of an experimental program, and subsequently, all patients have the right to refuse to participate. Patients who have consumed experimental medication have grounds for a claim against the physician based upon their failure to obtain "informed consent" prior to treatment.

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What is "informed consent?"

Although the specific definition of informed consent varies state to state, it generally means that a physician must inform a patient of all the potential benefits, risks, and alternatives involved in any surgical procedure, medical procedure, or other course of treatment, and must obtain the patient's written consent before proceeding.

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If the consent form I signed prior to a procedure is valid, can I still recover malpractice damages?

Yes, you may still be eligible to recover malpractice damages; a consent form does not release from liability a physician who was negligent in performing a medical procedure. If you can establish that your physician deviated from the applicable standard of care in performing the procedure, and you were injured or suffered damages as a result, you may recover compensation. You may also have a claim that the procedure the physician performed went beyond your allotted consent, in which case the doctor may be held liable for medical battery.

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How is a medical malpractice lawsuit brought?

To bring a case of medical malpractice, the claimant must present expert medical and non-medical (i.e. financial expert) testimony verifying the claims of negligence in a court of law.

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Are there time limitations for filing a claim?

Every state has certain time limits governing how long you have to file a medical malpractice case - these are known as statutes of limitations. The amount of time available to file a claim depends on the state in which you live, and in some cases, the type of case being filed. Most cases must be brought within three years after the date of injury, or one year after the injured party discovers the injury, whichever occurs first. Actions by a minor shall be commenced within three years from the date of the injury, or a child under the full age of six years shall be commenced within three years or prior to his eighth birthday, whichever provides a longer period. Because delay can jeopardize your claim, you should have an attorney who specializes in these cases review your claim as soon as possible.

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Can damages be recovered for Medical Malpractice in Nursing Homes?

Injuries suffered by residents of nursing homes may receive compensation under applicable medical malpractice state laws. When health care providers (this includes nursing home professionals and staff) fail to provide treatment with a reasonable degree of care, they may be liable for any resulting damages. Because nursing home residents require special care and attention, it is all the more important that the nurses and staff of the nursing home provide proper care to the residents. If you or someone you know reside in a nursing home and have been injured as a result of improper care, consultation with an attorney knowledgeable about medical malpractice law could help you determine if you have a valid claim.

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What is Anesthesia Negligence?

Injury may occur when anesthesia is improperly given or not given in a timely manner to a patient. If the failure of the anesthesiologist is the cause of injury or death to a patient, damages may be recoverable under the laws of medical malpractice. Most doctors and hospitals carry malpractice insurance, and some states even require that they contribute to a state patient's compensation fund.

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Does misdiagnosis fall under medical malpractice?

Yes. Medical malpractice is the failure of a medical provider to properly perform their duties, including the diagnosis of your condition. Misdiagnosis may include the failure to run certain diagnostic tests or failure to diagnose a condition in a timely manner. Medical malpractice is essentially the failure of a medical provider (including doctors, pharmacists, radiologists, laboratory technicians and doctors) to use reasonable care in treating a patient. The prescribed standard care that these medical providers owe their patients varies in different jurisdictions. However, the general rule is that they owe their patients the standard of care generally accepted by the medical profession with regard to the same or similar circumstances.

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What is Pharmacist Malpractice?

Pharmacist malpractice falls into the same category as medical malpractice, in the respect that if pharmacists and pharmacy technicians fail to treat the patient with a reasonable degree of skill and care, they are guilty of medical malpractice just the same as a doctor, nurse or other health care provider. If you receive the wrong medication for your condition or wrong combination of medications and suffer damage as a result, you may have a claim either against the doctor who prescribed the medication or the pharmacist who filled the prescription.

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What is OB-GYN Malpractice?

OB, or Obstetrics, malpractice is the failure of an obstetrician to properly perform his or her duties; i.e. failure to administer blood tests to detect abnormalities that can result in death or serious injury to both the mother and fetus.

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How long will it take to settle my claim?

The time it takes to settle a medical malpractice lawsuit depends on the circumstances surrounding the case. The more complex the case, the longer it may take to settle. Many cases can take anywhere from 3 to 18 months to settle depending on its complexity.

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